The founders of the Drug User Liberation Front (DULF) have won a major constitutional challenge against the Controlled Drugs and Substances Act, which prohibited the implementation of their non-medicalized safer supply program in the context of the toxic drug crisis.
DULF’s founders, Jeremy Kalicum and Eris Nyx, were represented by Tim Dickson and Kaelan Unrau of JFK Law LLP, and by Stephanie Dickson of SND Law.
What Is the Case About?
The Toxic Drug Crisis
It has been 10 years since the Province of British Columbia first declared a public health emergency in response to the toxic drug crisis. The immediate driver of the crisis is not in dispute. The street drug supply is increasingly contaminated with fentanyl, benzodiazepines, and other volatile adulterants. When a person – even someone experienced with drug use – consumes a dose that is more potent than expected, the result is too often an overdose.
The scale of the crisis is immense. More than 16,000 British Columbians have died from toxic drugs since the public health emergency was declared. There were 2,585 confirmed deaths in 2023 alone – an average of more than seven people dying each day. Anyone who relies on the unregulated drug supply is at risk of death and other serious harms.
DULF’s Compassion Club
In 2021, following expert calls for non-medicalized safer supply, DULF applied to Health Canada for approval to operate a “compassion club” in Vancouver’s Downtown Eastside neighbourhood – one of the communities hit hardest by the crisis. DULF’s proposal was to secure alternative sources of heroin, methamphetamine, and cocaine; subject those substances to the highest-quality drug testing available; and distribute the tested drugs to a closed group of club members at cost.
The proposed model contemplated sourcing the drugs from established pharmaceutical suppliers. Failing that, DULF proposed sourcing the drugs from the dark web. While not the preferred option, this approach would allow DULF to obtain drugs from higher up the supply chain, reducing the risk of later contamination, and avoid direct engagement with street-level illegal markets.
Health Canada denied the request in 2022. DULF challenged that decision in the Federal Court. Although the matter was heard in early 2024, the Federal Court’s decision remains under reserve.
DULF Operated Without Federal Approval in a Bid to Save Lives
With no approval from Health Canada, and no effective recourse through the courts, DULF proceeded to operate its compassion club from the summer of 2023 until October 2024, when the Vancouver Police Department raided the club’s site. During that time, DULF collected data on the club’s effectiveness; met regularly with law enforcement and provincial public health officials; and published several peer-reviewed papers detailing its findings.
Jeremy Kalicum and Eris Nyx were ultimately charged with possession for the purpose of trafficking under the federal Controlled Drugs and Substances Act. In response, they challenged the constitutionality of Canada’s drug laws, arguing that they infringed the constitutional rights to life, liberty, and security of the person, as well as the right to equality.
What Did the Court Decide?
Following a lengthy trial, which included extensive expert evidence, the court agreed with DULF that Canada’s drug laws are unconstitutional to the extent that they criminalize non-medicalized safer supply, thereby exposing people who use drugs in the Downtown Eastside – a particularly vulnerable population – to serious risks of harm and death.
The decision rests on several key findings:
- A non-medicalized safer supply program is urgently needed to save lives. In reaching this conclusion, the court highlighted the limits of existing interventions, including drug checking services, supervised consumption sites, and prescription-based safer supply models. It also emphasized the broad consensus among experts, including government advisory bodies, in favour of non-medicalized safer supply initiatives.
- DULF reduced the harms associated with the toxic drug crisis. In particular, the program enabled members to access drugs of known potency and composition, thereby reducing the risk of overdose.
- There was no evidence that DULF caused any negative impacts to the community or public safety. The court specifically considered the impact of DULF on organized crime, appreciating that members would otherwise be accessing illegal street markets, and concluded that no impact (whether positive or negative) had been established on the evidence.
- There is no practical and lawful source of drugs available under the existing regulatory regime to support non-medicalized safer supply. Among other things, the court noted the significant barriers to obtaining authorization to sell and distribute pharmaceutical-grade drugs under Canada’s complex regulatory framework.
The court concluded that the prohibition on possession for the purposes of trafficking – section 5(2) of the Controlled Drugs and Substances Act – unjustifiably infringes the Canadian Charter of Rights and Freedoms. It gave Parliament six months to cure the constitutional defects in the regime. It also entered judicial stays of proceedings in recognition of the fact that DULF’s founders had acted in the public interest and at considerable personal cost.
What Happens Next?
While the Crown may appeal the decision, the court’s reasons are detailed and firmly grounded in the extensive evidentiary record developed over the course of the trial.
So long as the ruling stands, Parliament will need to reform the regulatory regime to address the defects identified by the trial court. Among other things, this will likely require:
- Creating a workable mechanism to exempt non-medicalized safer supply programs from the Food and Drugs Act. The Food and Drugs Act operates alongside the Controlled Drugs and Substances Act to regulate the distribution of drugs in Canada. Based on the extensive evidentiary record at trial, including testimony from Health Canada officials called by the Crown, the court found that a program such as DULF engaged prohibitions under both statutes. However, there is currently no mechanism through which such a program can obtain an exemption from the Food and Drugs Act.
- Revising the exemption process under the Controlled Drugs and Substances Act to ensure timely and responsive decision-making. The court specifically observed that the current exemption and approval process is entirely discretionary, susceptible to political pressure, and capable of accommodating delays that are fundamentally incompatible with the realities of an ongoing public health emergency.
Drug policy remains a highly contentious political issue, and debates are often driven more by ideology than by evidence. The DULF trial provided the court with a rare opportunity to engage with a comprehensive evidentiary record concerning the toxic drug crisis and the role of non-medicalized safer supply. The result is a landmark decision that is likely to shape future discussions of Canadian drug policy for years to come.